SF MARKETS, LLC D/B/A SPROUTS FARMERS MARKET

National Labor Relations Board - Board Decisions

Mar 24, 2016

363 NLRB No. 146 (N.L.R.B. 2016)

363 NLRB No. 146
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
SF Markets, LLC d/b/a Sprouts Farmers Market and
Laura Christensen and Jana Mestanek. Cases
21–CA–099065 and 21–CA–104677
March 24, 2016
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS MISCIMARRA
AND HIROZAWA
On February 18, 2014, Administrative Law Ira
Sandron issued the attached decision. The Respondent
filed exceptions and a supporting brief, the General
Counsel filed an answering brief, and the Respondent
filed a reply brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions as
modified,2 and to adopt the recommended Order as modi-
fied and set forth in full below.3

1 In addition, pursuant to Reliant Energy, 339 NLRB 66 (2003), the
Respondent filed two postbrief letters calling the Board’s attention to
recent case authority.
2 Citing Hooks v. Kitsap Tenant Support Services., No. C13–5470
BHS, 2013 WL 4094344 (W.D. Wash. Aug. 13, 2013), the Respondent
argues that the complaint should be dismissed because it was issued
pursuant to authority delegated by Acting General Counsel Lafe Solo-
mon, whose appointment the Respondent argues violated the Federal
Vacancies Reform Act of 1998 (FVRA), 5 U.S.C. § 3345 et seq. For
the reasons set forth below, we find no merit in the Respondent’s ar-
gument that the Acting General Counsel was improperly or invalidly
“appointed.”
At the outset, we note that under the FVRA, a person is not “ap-
pointed” to serve in an acting capacity in a vacant office that otherwise
would be filled by appointment by the President, by and with the advice
and consent of the Senate. Rather, either the first assistant to the vacant
office performs the functions and duties of the office in an acting ca-
pacity by operation of law pursuant to 5 U.S.C. § 3345(a)(1), or the
President directs another person to perform the functions and duties of
the vacant office in an acting capacity pursuant to 5 U.S.C. §
3345(a)(2) or (3).
On June 18, 2010, the President directed Lafe Solomon, then-
Director of the NLRB’s Office of Representation Appeals, to serve as
Acting General Counsel pursuant to subsection (a)(3), the senior agen-
cy employee provision. Under the strictures of that provision, Solomon
was eligible to serve as Acting General Counsel at the time the Presi-
dent directed him to do so. See SW General, Inc. v. NLRB, 796 F.3d 67
(D.C. Cir. 2015). Thus, Solomon properly assumed the duties of Act-
ing General Counsel, and we find no merit in the Respondent’s argu-
ment that the Acting General Counsel was improperly or invalidly
“appointed.”
We acknowledge that the decision in SW General also held that Sol-
omon lost his authority as Acting General Counsel on January 5, 2011,
when the President nominated him to be General Counsel. While that

question is still in litigation, the Respondent has never raised that ar-
gument in this proceeding, and we find that the Respondent thereby has
waived the right to do so.
Finally, on November 23, 2015, General Counsel Richard F. Griffin,
Jr., issued a Notice of Ratification in this case. The Respondent subse-
quently filed a response. The Notice of Ratification states, in relevant
part:
The prosecution of this case commenced under the authority of Acting
General Counsel Lafe E. Solomon during the period after his nomina-
tion on January 5, 2011, while his nomination was pending with the
Senate, and before my confirmation on November 4, 2013.
The United States Court of Appeals for District of Columbia Circuit
recently held that Acting General Counsel Solomon’s authority under
the Federal Vacancies Reform Act (FVRA), 5 U.S.C. §§ 3345 et seq.,
ceased on January 5, 2011, when the President nominated Mr. Solo-
mon for the position of General Counsel. SW General, Inc. v. NLRB,
__ F.3d __, 2015 WL 4666487 (D.C. Cir. Aug. 7, 2015). The Court
found that complaints issued while Mr. Solomon’s nomination was
pending were unauthorized and that it was uncertain whether a lawful-
ly-serving General Counsel or Acting General Counsel would have
exercised discretion to prosecute the cases. Id. at *10.
I was confirmed as General Counsel on November 4, 2013. After ap-
propriate review and consultation with my staff, I have decided that
the issuance of the complaint in this case and its continued prosecution
are a proper exercise of the General Counsel’s broad and unreviewa-
ble discretion under Section 3(d) of the Act.
My action does not reflect an agreement with the appellate court rul-
ing in SW General. Rather, my decision is a practical response aimed
at facilitating the timely resolution of the charges that I have found to
be meritorious while the issues raised by SW General are being re-
solved. Congress provided the option of ratification by expressly ex-
empting “the General Counsel of the National Labor Relations Board”
from the FVRA provisions that would otherwise preclude the ratifica-
tion of certain actions of other persons found to have served in viola-
tion of the FVRA. Id. at *9 (citing 5 U.S.C. § 3348(e)(1)).
For the foregoing reasons, I hereby ratify the issuance and continued
prosecution of the complaint.
Thus, even assuming that the Respondent had not previously waived
its right to challenge the continued authority of the Acting General
Counsel following his nomination by the President, this ratification
renders moot any argument that SW General precludes further litigation
of this matter.
3 In accordance with our decision in Advoserv of New Jersey, Inc.,
363 NLRB No. 143 (2016), we shall modify the judge’s recommended
tax compensation and Social Security reporting remedy. We shall mod-
ify the judge’s recommended Order and substitute a new notice to
reflect this remedial change.
Consistent with our decision in Murphy Oil USA, Inc., 361 NLRB
No. 71 (2014), enf. denied in relevant part 808 F.3d 1013 (5th Cir.
2015), we amend the judge’s remedy and shall order the Respondent to
reimburse Jana Mestanek and all other plaintiffs, if any, for all reasona-
ble expenses and legal fees, with interest, incurred in opposing the
Respondent’s unlawful motions in State court to compel individual
arbitration of her, or their, class or collective claims. See Bill John-
son’s Restaurants v. NLRB, 461 U. S. 731, 747 (1983) (“If a violation is
found, the Board may order the employer to reimburse the employees
whom he had wrongfully sued for their attorneys’ fees and other ex-
penses” as well as “any other proper relief that would effectuate the
policies of the Act.”). Interest shall be computed in the manner pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded daily
as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010).
See Teamsters Local 776 (Rite Aid), 305 NLRB 832, 835 fn. 10 (1991)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
1. The judge found, applying the Board’s decision in
D. R. Horton, 357 NLRB 2277 (2014), enf. denied in
relevant part 737 F.3d 344 (5th Cir. 2015), that the Re-
spondent violated Section 8(a)(1) of the Act by maintain-
ing its revised Mutual Binding Arbitration Agreement
(MBAA) since January 1, 2013, which requires employ-
ees, as a condition of hiring and continued employment,
to waive their rights to pursue class or collective actions
involving employment-related claims in all forums,
whether arbitral or judicial.4 In Murphy Oil USA, Inc.,
supra, the Board reaffirmed the relevant holdings of D.
R. Horton, supra. Based on the judge’s application of D.
R. Horton, and on our subsequent decision in Murphy
Oil, we affirm the judge’s finding that the Respondent’s
maintenance of the revised MBAA violated Section
8(a)(1).
The Respondent argues that D. R. Horton is invalid
because it was issued by a panel that included Member
Becker, whose appointment the Respondent argues was
invalid. The appointment of Member Becker was consti-
tutionally valid, however, and thus the Board had a quor-
um at the time it issued that decision. See NLRB v. Noel
Canning, 134 S.Ct. 2550 (2014); Mathew Enterprise,
Inc. v. NLRB, 771 F.3d 812, 814 (D.C. Cir. 2014);
Gestamp South Carolina, L.L.C. v. NLRB, 769 F.3d 254,
257–258 (4th Cir. 2014); Entergy Mississippi, Inc., 361
NLRB No. 89 (2014). The Respondent further argues
that even if former Member Becker’s appointment was
valid, his term nevertheless expired prior to the issuance
of D. R. Horton, supra. We reject this contention for the
reasons stated in Murphy Oil, supra, slip op. at 2 fn. 16.
See also Dodge of Naperville, Inc. v. NLRB, 796 F.3d 31,
41 (D.C. Cir. 2015); D. R. Horton, Inc. v. NLRB, 737
F.3d at 352–353.5

(“[I]n make-whole orders for suits maintained in violation of the Act, it
is appropriate and necessary to award interest on litigation expenses.”),
enfd. 973 F.2d 230 (3d Cir. 1992). We shall modify the judge’s rec-
ommended Order to conform to the violations found and to the Board’s
standard remedial language. We shall substitute a new notice to con-
form to the Order as modified and in accordance with Durham School
Services, L.P., 360 NLRB No. 85 (2014).
4 Prior to January 1, 2013, the Respondent maintained a Mutual
Binding Arbitration Agreement that did not, on its face, expressly pro-
hibit class and collective arbitration and thus did not explicitly restrict
activities protected by Sec. 7. As discussed below, we affirm the
judge’s finding that the Respondent nevertheless unlawfully enforced
the original MBAA by filing a motion to compel individual arbitration
of the claims in a class action wage-and-hour lawsuit filed in State
court.
5 The Respondent also contends that Regional Director Olivia Gar-
cia was without authority to issue the complaint in this case because the
Board appointed her as Regional Director for Region 21 on January 6,
2012, when the Board lacked a quorum after the expiration of former
Board Member Becker’s term. This contention is without merit. Alt-
hough Regional Director Garcia’s appointment was announced on
The Respondent additionally argues that its MBAA in-
cludes an exemption allowing employees to file charges
with administrative agencies, including with the Board,
and thus does not, as in D. R. Horton, unlawfully prohibit
employees from collectively pursuing litigation of em-
ployment claims in all forums. We reject the Respond-
ent’s argument for the reasons stated in SolarCity Corp.,
363 NLRB No. 83 (2015).6
2. We further agree with the judge that the Respondent
unlawfully enforced the original MBAA by moving to
compel individual arbitration of Charging Party Jana
Mestanek’s employment-related claims after Mestanek
filed a class action wage-and-hour lawsuit in Los Ange-
les County Superior Court.7 Although the original
MBAA did not expressly prohibit class and collective
arbitration, by arguing that the original MBAA barred
collective legal action, the Respondent unlawfully ap-
plied the original MBAA to restrict the exercise of Sec-
tion 7 rights. See Countrywide Financial Corp., 362
NLRB No. 165, slip op. at 3–5 (2015); see also Employ-
ers Resource, 363 NLRB No. 59, slip op. at 1 fn. 2
(2015).8

January 6, 2012, the Board approved the appointment on December 22,
2011, at which time it had a valid quorum. See, e.g., Covenant Care
California, LLC, 363 NLRB No. 80, slip op. at 1 fn. 2 (2015).
6 Our dissenting colleague, relying on his dissenting position in
Murphy Oil, 361 NLRB No. 72, slip op. at 22–35, would find that the
Respondent’s MBAA does not violate Sec. 8(a)(1). He observes that
the Act does not “dictate” any particular procedures for the litigation of
non-NLRA claims, and “creates no substantive right for employees to
insist on class-type treatment of non-NLRA claims.” This is all surely
correct, as the Board has previously explained in Murphy Oil, supra,
slip op. at 2, 16, and Bristol Farms, 363 NLRB No. 45, slip op. at 2 fn.
2 (2015). But what our colleague ignores is that the Act “does create a
right to pursue joint, class, or collective claims if and as available with-
out the interference of an employer-imposed restraint.” Murphy Oil,
above, slip op. at 2 (emphasis in original). The Respondent’s MBAA is
just such an unlawful restraint.
Likewise, for the reasons explained in Murphy Oil and Bristol
Farms, there is no merit to our colleague’s view that finding the
MBAA unlawful runs afoul of employees’ Sec. 7 right to “refrain
from” engaging in protected activity. See Murphy Oil, slip op. at 18;
Bristol Farms, slip op. at 3. Nor is he correct in insisting that Sec. 9(a)
of the Act requires the Board to permit individual employees to pro-
spectively waive their Sec. 7 right to engage in concerted legal activity.
Murphy Oil, slip op. at 17–18; Bristol Farms, slip op. at 2.
7 We reverse the judge’s finding that the Respondent violated Sec.
8(a)(1) by maintaining the original MBAA prior to January 1, 2013.
The parties litigated this case on a stipulated record, and this was not
identified as an issue to be litigated in the complaint, the stipulations, or
the briefs to the judge. We therefore find that this issue was not fully
litigated. See Pergament United Sales, 296 NLRB 333, 334 (1989),
enfd. 920 F.2d 130 (2d Cir. 1990).
8 We reject our dissenting colleague’s argument that Mestanek was
not engaged in concerted activity in filing the class action wage-and-
hour lawsuit in State superior court. As the Board made clear in
Beyoglu, 362 NLRB No. 152 (2015), “the filing of an employment-
related class or collective action by an individual employee is an at-
SF MARKETS, LLC 3
We reject the position of the Respondent and our dis-
senting colleague that the Respondent’s motion to com-
pel arbitration was protected by the First Amendment’s
Petition Clause. In Bill Johnson’s Restaurants v. NLRB,
461 U.S. 731, 747 (1983), the Court identified two situa-
tions in which a lawsuit enjoys no such protection: where
the action is beyond a State court’s jurisdiction because
of Federal preemption, and where “a suit . . . has an ob-
jective that is illegal under federal law.” 461 U.S. at 737
fn. 5. Thus, the Board may properly restrain litigation
efforts such as the Respondent’s motion to compel arbi-
tration that have the illegal objective of limiting employ-
ees’ Section 7 rights and enforcing an unlawful contrac-
tual provision, even if the litigation was otherwise meri-
torious or reasonable. See Murphy Oil, supra, slip op. at
20–21; Convergys Corp., 363 NLRB No. 51, slip op. at 2
fn. 5 (2015).
3. Finally, the judge found that the Respondent violat-
ed Section 8(a)(1) by threatening to terminate, and sub-
sequently actually terminating, Charging Party Laura
Christensen for refusing to sign the revised MBAA. We
agree. Because maintaining the revised MBAA as a
condition of employment was unlawful, threatening to
discharge and/or discharging an employee for refusing to
agree to the unlawful revised MBAA also violated Sec-
tion 8(a)(1). See Denson Electric Co., 133 NLRB 122,
129, 131 (1961). See also Keiser University, 363 NLRB
No. 73, slip op. at 1, 7 (2015) (affirming judge’s finding
that discharging employee for refusing to sign unlawful
arbitration agreement was unlawful); Kolkka Tables &
Finnish-American Saunas, 335 NLRB 844, 849 (2001)
(finding that respondent unlawfully suspended employee
who refused unlawful order).
ORDER
The National Labor Relations Board orders that the
Respondent, SF Markets, LLC d/b/a Sprouts Farmers
Market, Phoenix, Arizona, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Maintaining a revised Mutual Binding Arbitration
Agreement (MBAA) that requires employees, as a condi-
tion of employment, to waive the right to maintain class
or collective actions in all forums, whether arbitral or
judicial.
(b) Enforcing a mandatory arbitration agreement (the
original MBAA) in a manner that requires employees, as
a condition of employment, to waive the right to main-

tempt to initiate, to induce, or to prepare for group action and is there-
fore conduct protected by Section 7.” Id., slip op. at 2. See also D. R.
Horton, supra, at 2279.
tain class or collective actions in all forums, whether
arbitral or judicial.
(c) Threatening to discharge and discharging or oth-
erwise discriminating against an employee for failing or
refusing to sign a mandatory arbitration agreement (the
revised MBAA) that requires employees, as a condition
of employment, to waive the right to maintain class or
collective actions in all forums, whether arbitral or judi-
cial.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind the revised Mutual Binding Arbitration
Agreement (MBAA) in all its forms, or revise it in all its
forms to make clear to employees that the MBAA does
not constitute a waiver of their right to maintain em-
ployment-related joint, class, or collective actions in all
forums.
(b) Notify all current and former employees who were
required to sign or otherwise become bound to the re-
vised MBAA in any form that it has been rescinded or
revised and, if revised, provide them a copy of the newly
revised MBAA.
(c) Within 14 days from the date of this Order, offer
Laura Christensen full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(d) Make Laura Christensen whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her in the manner set forth in the
remedy section of the judge’s decision.
(e) Compensate Laura Christensen for the adverse tax
consequences, if any, of receiving a lump-sum backpay
award, and file with the Regional Director for Region 21
within 21 days of the date the amount of backpay is
fixed, either by agreement or Board order, a report allo-
cating the backpay award to the appropriate calendar
years.
(f) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge of
Laura Christensen, and within 3 days thereafter, notify
her in writing that this has been done and that the dis-
charge will not be used against her in any way.
(g) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(h) In the manner set forth in this decision, reimburse
Jana Mestanek and any other plaintiffs for any reasona-
ble attorneys’ fees and litigation expenses that they may
have incurred in opposing the Respondent’s motions to
compel arbitration filed in Los Angeles County and Or-
ange County Superior Courts.
(i) Within 14 days after service by the Region, post at
its Tustin and Yorba Linda facilities copies of the at-
tached notice marked “Appendix A,” and at all other
California facilities where the unlawful arbitration
agreement is or has been in effect, copies of the attached
notice marked “Appendix B.”9 Copies of the notices, on
forms provided by the Regional Director for Region 21,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Respondent custom-
arily communicates with its employees by such means.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. If the Respondent has gone
out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice marked “Appendix
A” to all current employees and former employees em-
ployed by the Respondent at any time since December
17, 2012, and any former employees against whom the
Respondent has enforced its mandatory arbitration
agreement since December 17, 2012. If the Respondent
has gone out of business or closed any facilities other
than the one involved in these proceedings, the Respond-
ent shall duplicate and mail, at its own expense, a copy
of the notice marked “Appendix B” to all current em-
ployees and former employees employed by the Re-
spondent at those facilities at any time since December
17, 2012.
(j) Within 21 days after service by the Region, file
with the Regional Director for Region 21 a sworn certifi-
cation of a responsible official on a form provided by the

9 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notices reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Region attesting to the steps that the Respondent has
taken to comply.
Dated, Washington, D.C. March 24, 2016
______________________________________
Mark Gaston Pearce, Chairman
______________________________________
Kent Y. Hirozawa, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
MEMBER MISCIMARRA, dissenting in part.1
In this case, my colleagues find that the Respondent’s
revised Mutual Binding Arbitration Agreement (MBAA)
violates Section 8(a)(1) of the National Labor Relations
Act (the Act or NLRA) because the revised MBAA
waives the right to participate in class or collective ac-
tions regarding non-NLRA employment claims. In addi-
tion, before implementing its revised MBAA, the Re-
spondent required its employees to sign its original
MBAA, which provided for the arbitration of non-NLRA
employment-related claims. The Agreement was silent
regarding class arbitration. Charging Party Jana
Mestanek signed the original MBAA and later filed a
class action lawsuit against the Respondent in Los Ange-
les County Superior Court alleging that the Respondent
had committed various violations of California wage-
and-hour laws. In reliance on the original MBAA, the
Respondent filed a petition to compel arbitration in Or-
ange County Superior Court and a motion to compel ar-
bitration in Los Angeles County Superior Court.2 My
colleagues find that the Respondent violated NLRA Sec-

1 I agree with my colleagues that the complaint is properly before
the Board for decision and that the term of former Member Becker did
not expire prior to the issuance of the Board’s decision in D. R. Horton,
Inc., 357 NLRB 2277 (2012), enf. denied in relevant part 737 F.3d 344
(5th Cir. 2013).
2 In response to the Respondent’s petition to compel arbitration filed
in Orange County Superior Court, Mestanek filed a motion to abate
action. On March 6, 2013, the Orange County Superior Court issued a
tentative ruling, which it thereafter affirmed in a Minute Order, grant-
ing Mestanek’s motion to abate action and staying the Respondent’s
petition to compel arbitration on the grounds that the Los Angeles
County Superior Court had jurisdiction over the matter. On June 7,
2013, the Los Angeles County Superior Court denied Mestanek’s re-
quest to defer ruling on the Respondent’s motion to compel arbitration
“pending completion of the NLRB’s investigation” and granted in
relevant part the Respondent’s motion to compel arbitration of
Mestanek’s individual claims. The court declined to find D. R. Horton
“persuasive authority,” as Mestanek had argued. Indeed, the court
agreed with the Respondent “that D. R. Horton is an ‘outlier.’”
SF MARKETS, LLC 5
tion 8(a)(1) under Lutheran Heritage Village–Livonia3
on the basis that the Respondent applied the original
MBAA to require individual arbitration. In other words,
it applied the original MBAA as a waiver of class-type
treatment of non-NLRA claims.4 I respectfully dissent
from these findings for the reasons explained in my par-
tial dissenting opinion in Murphy Oil USA, Inc.5
I agree that an employee may engage in “concerted”
activities for “mutual aid or protection” in relation to a
claim asserted under a statute other than NLRA.6 How-
ever, Section 8(a)(1) of the Act does not vest authority in
the Board to dictate any particular procedures pertaining
to the litigation of non-NLRA claims, nor does the Act
render unlawful agreements in which employees waive
class-type treatment of non-NLRA claims. To the con-
trary, as discussed in my partial dissenting opinion in

3 343 NLRB 646 (2004).
4 My colleagues cite Countrywide Financial Corp., 362 NLRB No.
165, slip op. at 3–5 (2015), and Employers Resource, 363 NLRB No.
59, slip op. at 1 fn. 2 (2015), in which the majority relied on the
Board’s holding in Lutheran Heritage that a policy, work rule or hand-
book provision will be unlawful if it “has been applied to restrict the
exercise of Section 7 rights.” 343 NLRB at 647. This differs from
another holding in Lutheran Heritage, sometimes referred to as Luther-
an Heritage “prong one,” under which a policy, work rule or handbook
provision is invalidated if “employees would reasonably construe the
language to prohibit Section 7 activity.” Id. I have expressed disa-
greement with Lutheran Heritage prong one, and I advocate that the
Board formulate a different standard in an appropriate future case re-
garding facially neutral policies, work rules, and handbook provisions.
See, e.g., Lily Transportation Corp., 362 NLRB No. 54, slip op. at 1 fn.
3 (2015); Conagra Foods, Inc., 361 NLRB No. 113, slip op. at 8 fn. 2
(2014); Triple Play Sports Bar & Grille, 361 NLRB No. 31, slip op. at
10 fn. 3 (2014), affd. sub nom. Three D, LLC v. NLRB, Nos. 14–3284,
–3814, 2015 WL 6161477 (2d Cir. Oct. 21, 2015). In the instant case,
for the reasons noted in the text, I disagree with my colleagues’ finding
in reliance on the “as applied” prong of the Lutheran Heritage standard
that the Agreement has been unlawfully applied to restrict the exercise
of Section 7 rights.
5 361 NLRB No. 72, slip op. at 22–35 (2014) (Member Miscimarra,
dissenting in part); see also Philmar Care, LLC d/b/a San Fernando
Post Acute Hospital, 363 NLRB No. 57, slip op. at 3–5 (2015) (Mem-
ber Miscimarra, dissenting). The Board majority’s holding in Murphy
Oil invalidating class-action waiver agreements was denied enforce-
ment by the Court of Appeals for the Fifth Circuit. Murphy Oil USA,
Inc. v. NLRB, 808 F.3d 1013 (5th Cir. 2015).
6 I agree that non-NLRA claims can give rise to “concerted” activi-
ties engaged in by two or more employees for the “purpose” of “mutual
aid or protection,” which would come within the protection of NLRA
Sec. 7. See Murphy Oil, 361 NLRB No. 72, slip op. at 23–25 (Member
Miscimarra, dissenting in part). However, the existence or absence of
Sec. 7 protection does not depend on whether non-NLRA claims are
pursued as a class or collective action, but on whether Sec. 7’s statutory
requirements are met—an issue separate and distinct from whether an
individual employee chooses to pursue a claim as a class or collective
action. Id.; see also Beyoglu, 362 NLRB No. 152, slip op. at 4–5
(2015) (Member Miscimarra, dissenting). Here, Charging Party
Mestanek was not engaged in concerted activity when, acting individu-
ally, she filed a class action lawsuit in Los Angeles County Superior
Court. See my dissent in Beyoglu, above.
Murphy Oil, NLRA Section 9(a) protects the right of
every employee as an “individual” to “present” and “ad-
just” grievances “at any time.”7 This aspect of Section
9(a) is reinforced by Section 7 of the Act, which protects
each employee’s right to “refrain from” exercising the
collective rights enumerated in Section 7. Thus, I be-
lieve it is clear that (i) the NLRA creates no substantive
right for employees to insist on class-type treatment of
non-NLRA claims;8 (ii) a class-waiver agreement per-
taining to non-NLRA claims does not infringe on any
NLRA rights or obligations, which has prompted the
overwhelming majority of courts to reject the Board’s
position regarding class-waiver agreements;9 and (iii)
enforcement of a class-action waiver as part of an arbitra-
tion agreement is also warranted by the Federal Arbitra-

7 Murphy Oil, above, slip op. at 30–34 (Member Miscimarra, dis-
senting in part). Sec. 9(a) states: “Representatives designated or select-
ed for the purposes of collective bargaining by the majority of the em-
ployees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of
collective bargaining in respect to rates of pay, wages, hours of em-
ployment, or other conditions of employment: Provided, That any indi-
vidual employee or a group of employees shall have the right at any
time to present grievances to their employer and to have such griev-
ances adjusted, without the intervention of the bargaining representa-
tive, as long as the adjustment is not inconsistent with the terms of a
collective-bargaining contract or agreement then in effect: Provided
further, That the bargaining representative has been given opportunity
to be present at such adjustment” (emphasis added). The Act’s legisla-
tive history shows that Congress intended to preserve every individual
employee’s right to “adjust” any employment-related dispute with his
or her employer. See Murphy Oil, above, slip op. at 31–32 (Member
Miscimarra, dissenting in part).
8 When courts have jurisdiction over non-NLRA claims that are po-
tentially subject to class treatment, the availability of class-type proce-
dures does not rise to the level of a substantive right. See D. R. Horton,
Inc. v. NLRB, 737 F.3d 344, 362 (5th Cir. 2013) (“The use of class
action procedures . . . is not a substantive right.”) (citations omitted),
petition for rehearing en banc denied No. 12-60031 (5th Cir. 2014);
Deposit Guaranty National Bank v. Roper, 445 U.S. 326, 332 (1980)
(“[T]he right of a litigant to employ Rule 23 is a procedural right only,
ancillary to the litigation of substantive claims.”).
9 The Fifth Circuit has twice denied enforcement of Board orders
invalidating a mandatory arbitration agreement that waived class-type
treatment of non-NLRA claims. See Murphy Oil, Inc., USA v. NLRB,
above; D. R. Horton, Inc. v. NLRB, above. The overwhelming majority
of courts considering the Board’s position have likewise rejected it.
See Murphy Oil, 361 NLRB No. 72, slip op. at 34 (Member
Miscimarra, dissenting in part); id., slip op. at 36 fn. 5 (Member John-
son, dissenting) (collecting cases); see also Patterson v. Raymours
Furniture Co., 96 F.Supp. 3d 71 (S.D.N.Y. 2015); Nanavati v. Adecco
USA, Inc., 99 F. Supp. 3d 1072 (N.D. Cal. 2015), motion to certify for
interlocutory appeal denied 2015 WL 4035072 (N.D. Cal. June 30,
2015); Brown v. Citicorp Credit Services, No. 1:12-CV-00062-BLW,
2015 WL 1401604 (D. Idaho Mar. 25, 2015) (granting reconsideration
of prior determination that class waiver in arbitration agreement violat-
ed NLRA); but see Totten v. Kellogg Brown & Root, LLC, No. ED CV
14-1766 DMG (DTBx), 2016 WL 316019 (C.D. Cal. Jan. 22, 2016).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
tion Act (FAA).10 Although questions may arise regard-
ing the enforceability of particular agreements that waive
class or collective litigation of non-NLRA claims, I be-
lieve these questions are exclusively within the province
of the court or other tribunal that, unlike the NLRB, has
jurisdiction over such claims.11
Because I believe the Respondent’s original MBAA
was lawful under the NLRA, I would find it was similar-
ly lawful for the Respondent to file a motion in state
court seeking to enforce that agreement.12 It is relevant
that the state court that had jurisdiction over the non-
NLRA claims granted the Respondent’s motion to com-
pel arbitration. That the Respondent’s motion was rea-
sonably based is also supported by court decisions that
have enforced similar agreements.13 As the Fifth Circuit
recently observed after rejecting (for the second time) the

10 For the reasons expressed in my Murphy Oil partial dissent and
those thoroughly explained in former Member Johnson’s dissent in
Murphy Oil, the FAA requires that the arbitration agreement be en-
forced according to its terms. Murphy Oil, above, slip op. at 34 (Mem-
ber Miscimarra, dissenting in part); id., slip op. at 49–58 (Member
Johnson, dissenting).
11 Because I disagree with the Board’s decisions in Murphy Oil,
above, and D. R. Horton, above, and I believe the NLRA does not
render unlawful arbitration agreements that provide for the waiver of
class-type litigation of non-NLRA claims, I find it unnecessary to reach
whether such agreements should independently be deemed lawful to the
extent they “leave[] open a judicial forum for class and collective
claims,” D. R. Horton, 357 NLRB at 2288, by permitting the filing of
complaints with administrative agencies that, in turn, may file class- or
collective-action lawsuits. See Owen v. Bristol Care, Inc., 702 F.3d
1050 (8th Cir. 2013)
12 The Agreement is silent as to whether arbitration may be con-
ducted on a class or collective basis. In finding the Respondent’s mo-
tion to compel individual arbitration was nevertheless unlawful, my
colleagues rely on Countrywide Financial Corp., above. In Country-
wide Financial, a Board majority decided that the employer violated
the Act by moving to compel individual arbitration based on an arbitra-
tion agreement that, like the Respondent’s, was silent regarding the
arbitrability of class and collective claims. For the reasons stated in
Member Johnson’s dissent in Countrywide Financial, however, id., slip
op. at 8–10, the Board’s decision in that case is in conflict with the
FAA and Supreme Court precedent construing that statute. The Court
has held that a “party may not be compelled under the FAA to submit
to class arbitration unless there is a contractual basis for concluding that
the party agreed to do so.” Stolt-Nielsen S.A. v. Animal Feeds Interna-
tional Corp., 559 U.S. 662, 684–685 (2010) (emphasis in original).
Obviously, where an arbitration agreement is silent regarding class
arbitration, there is no such contractual basis. Thus, Respondent’s
motion to compel individual arbitration was “well-founded in the FAA
as authoritatively interpreted by the Supreme Court.” Philmar Care,
LLC d/b/a San Fernando Post Acute Hospital, above, slip op. at 4 fn.
11 (Member Miscimarra, dissenting); see also Employers Resource,
363 NLRB No. 59, slip op. at 3 fn. 9 (2015) (Member Miscimarra,
dissenting); Countrywide Financial, above, slip op. at 9 (Member John-
son, dissenting).
13 See, e.g., Murphy Oil, Inc., USA v. NLRB, above;
Johnmohammadi v. Bloomingdale’s, 755 F.3d 1072 (9th Cir. 2014); D.
R. Horton, Inc. v. NLRB, above; Owen v. Bristol Care, Inc., above;
Sutherland v. Ernst & Young LLP, 726 F.3d 290 (2d Cir. 2013).
Board’s position regarding the legality of class-waiver
agreements: “[I]t is a bit bold for [the Board] to hold that
an employer who followed the reasoning of our D. R.
Horton decision had no basis in fact or law or an ‘illegal
objective’ in doing so. The Board might want to strike a
more respectful balance between its views and those of
circuit courts reviewing its orders.”14 I also believe that
any Board finding of a violation based on the Respond-
ent’s meritorious state court motion to compel arbitration
would improperly risk infringing on the Respondent’s
rights under the First Amendment’s Petition Clause. See
Bill Johnson’s Restaurants v. NLRB, 461 U.S. 731
(1983); BE & K Construction Co. v. NLRB, 536 U.S. 516
(2002); see also my partial dissent in Murphy Oil, above,
361 NLRB No. 72, slip op. at 33–35. Finally, for similar
reasons, I believe the Board cannot properly require the
Respondent to reimburse Charging Party Mestanek or
any other plaintiffs for their attorneys’ fees in the cir-
cumstances presented here. Murphy Oil, above, 361
NLRB No. 72, slip op. at 35.
Finally, my colleagues find that the Respondent violat-
ed the Act by threatening to discharge Charging Party
Laura Christensen if she refused to sign the revised
MBAA and by discharging her when she refused to sign
it. I disagree. The Respondent lawfully insisted that its
employees execute the revised MBAA as a condition of
their employment. Every agreement sets forth terms
upon which each party may insist as a condition of enter-
ing into the relationship governed by the agreement.
Thus, conditioning employment on the execution of a
lawful class-action waiver agreement does not make the
agreement involuntary or unlawful. Because I believe
the revised MBAA was lawful under the NLRA, and
because parties may lawfully choose whether or not to
accept or continue employment subject to this type of
agreement, I believe the Act did not require the Re-
spondent to continue Christensen’s employment when it
determined that she was unwilling to enter into the re-
vised MBAA.15
Accordingly, for the foregoing reasons, I respectfully
dissent in part.
Dated, Washington, D.C. March 24, 2016

14 Murphy Oil USA, Inc. v. NLRB, 808 F.3d at 1021.
15 Everglades College, Inc. d/b/a Keiser University, 363 NLRB No.
73 (2015), cited by my colleagues, is distinguishable. Although I found
that the employer in that case lawfully conditioned employment on the
execution of a class-action waiver, I agreed with the majority that the
agreement at issue there violated Sec. 8(a)(1) by interfering with the
filing of charges with the Board. On that basis, I found that the em-
ployer additionally violated Sec. 8(a)(1) when it discharged an employ-
ee for refusing to sign the agreement. Here, by contrast, the revised
MBAA was lawful under the NLRA in all respects, and the Respondent
lawfully enforced it.
SF MARKETS, LLC 7
______________________________________
Philip A. Miscimarra, Member
NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment that requires our employees, as a condition of em-
ployment, to waive the right to maintain class or collec-
tive actions in all forums, whether arbitral or judicial.
WE WILL NOT enforce a mandatory arbitration agree-
ment in a manner that requires our employees, as a con-
dition of employment, to waive the right to maintain
class or collective actions in all forums, whether arbitral
or judicial.
WE WILL NOT threaten to discharge, discharge, or oth-
erwise discriminate against you for failing or refusing to
sign a mandatory arbitration agreement that requires em-
ployees, as a condition of employment, to waive the right
to maintain class or collective actions in all forums,
whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind our revised Mutual Binding Arbitra-
tion Agreement (MBAA) in all its forms, or revise it in
all its forms to make clear that the MBAA does not con-
stitute a waiver of your right to maintain employment-
related joint, class, or collective actions in all forums.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
revised MBAA in any of its forms that the MBAA has
been rescinded or revised and, if revised, WE WILL pro-
vide them a copy of the revised agreement.
WE WILL, within 14 days from the date of the Board’s
Order, offer Laura Christensen full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Laura Christensen whole for any loss
of earnings and other benefits resulting from the discrim-
ination against her, less any net interim earnings, plus
interest.
WE WILL compensate Laura Christensen for the ad-
verse tax consequences, if any, of receiving a lump-sum
backpay award, and WE WILL file with the Regional Di-
rector for Region 21, within 21 days of the date of the
amount of backpay is fixed, either by agreement or
Board order, a report allocating the backpay award to the
appropriate calendar years.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Laura Christensen, and WE WILL, within
3 days thereafter, notify her in writing that this has been
done and that the discharge will not be used against her
in any way.
WE WILL reimburse Jana Mestanek and any other
plaintiffs for any reasonable attorneys’ fees and litigation
expenses that they may have incurred in opposing our
petition to compel arbitration filed in Orange County
Superior Court and our motion to compel arbitration and
stay proceedings filed in Los Angeles County Superior
Court.
SF MARKETS, LLC D/B/A SPROUTS FARMERS
MARKET
The Board’s decision can be found at
www.nlrb.gov/case/21–CA–099065 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
AN AGENCY OF THE UNITED STATES GOVERNMENT
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT maintain a mandatory arbitration agree-
ment that requires our employees, as a condition of em-
ployment, to waive the right to maintain class or collec-
tive actions in all forums, whether arbitral or judicial.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL rescind our revised Mutual Binding Arbitra-
tion Agreement (MBAA) in all its forms, or revise it in
all its forms to make clear that the MBAA does not con-
stitute a waiver of your right to maintain employment-
related joint, class, or collective actions in all forums.
WE WILL notify all current and former employees who
were required to sign or otherwise become bound to the
revised MBAA in any of its forms that the MBAA has
been rescinded or revised and, if revised, WE WILL pro-
vide them a copy of the revised agreement.
SF MARKETS, LLC D/B/A SPROUTS FARMERS
MARKET
The Board’s decision can be found at
www.nlrb.gov/case/21–CA–099065 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1015 Half Street, S.E., Washington, D.C.
20570, or by calling (202) 273-1940.
Ami Silverman, Esq., for the General Counsel.
Daniel B. Pasternak, Esq. (Squire Sanders (US) LLP), for the
Respondent.
John Glugoski, Esq. (Righetti Glugoski, P.C.), for Charging
Party Christensen.
Alison M. Miceli, Esq. (Aegis Law Firm, PC), for Charging
Party Mestanek.
DECISION
STATEMENT OF THE CASE
IRA SANDRON, Administrative Law Judge. This case is be-
fore me on an order consolidating cases, consolidated com-
plaint, and notice of hearing issued on July 31, 2013 (the com-
plaint). The General Counsel alleges that SF Markets, LLC
d/b/a Sprouts Farmers Market (the Respondent) committed
various violations of Section 8(a)(1) of the National Labor Re-
lations Act (the Act) in connection with the mutual binding
arbitration agreements (MAAs) that it has required as a condi-
tion of hiring and continued employment.
On December 12, 2013, the parties filed a joint motion to
submit the case on stipulation, stipulation of facts, and request
to forgo submission of short position statements. They re-
quested that, pursuant to Section 102.35(a)(9) of the Board’s
Rules and Regulations, I approve in full their stipulation of
facts (along with attached exhibits), grant their request to waive
a hearing in this consolidated proceeding, and issue a decision.
The joint motion and stipulation of facts were made without
prejudice to any objection that any party might have as to the
materiality or relevance of any stipulated facts. The Respond-
ent did not waive any objections or defenses, including any
affirmative defenses and avoidances that it asserted in its first
amended answer to the complaint.
On December 23, 2013, I issued an order granting the mo-
tion and setting January 27, 2014, as the due date for the par-
ties’ briefs.
On January 6, 2014, the Respondent filed a motion to dis-
miss, and the Respondent and the General Counsel later filed
briefs, all of which I have considered.
Stipulated Issues
(1) Should the Respondent’s maintenance of its MAAs as a
condition of employment and continued employment be held
to violate employees’ Section 7 rights pursuant to D.R. Hor-
ton, Inc. (Horton), 357 NLRB No. 184 [2277] (2012), enfd. in
part, denied in part 737 F.3d 344(5th Cir. 2013)? The answer
to this question is pivotal to deciding all of the allegations in
this case.
(2) Did the Respondent unlawfully file a petition to compel
arbitration in Orange County Superior Court, on December
17, 2012, and a motion to compel arbitration in Los Angeles
County Superior Court, on April 22, 2013, to enforce its
MAA with Jana Mestanek, so as to preclude her from pursu-
ing, on a class or collective-action basis, wage-hour claims
under California law that she filed in Los Angeles Superior
Court on November 7, 2012?
(3) Did the Respondent, through Managers Frank Lopez and
Don Robertson, unlawfully tell Laura Christensen, on about
January 18, 2013, that if she did not sign the acknowledge-
ment of the California team member handbook supplement,
and thereby agree to the terms of a revised MAA, she would
be considered to have resigned her employment?
(4) Did the Respondent unlawfully terminate Christensen’s
employment on January 30, 2013, based on her refusal to sign
the acknowledgement described above?
In the joint motion, the Respondent also requested that I con-
sider several issues, including:
(1) Whether the complaint is barred, in whole in part, because
(a) the Board lacked a quorum at the time it issued its decision
in Horton; (b) the consolidated complaint was issued on the
SF MARKETS, LLC 9
authority of a regional director appointed to that position by a
Board that lacked a quorum at the time of her appointment;
and/or (c) the complaint was issued pursuant to a delegation
of authority from the Acting General Counsel who was ap-
pointed to that position in violation of the Vacancies Reform
Act, 5 U.S.C.§ 3345 et seq., and who therefore lacked authori-
ty to so delegate.
The Board has addressed these issues, and I will discuss
them in the analysis and conclusions section. I simply state
here that I recognize the Respondent’s need to raise them be-
fore me in order to preserve them on the record should the
Board or the courts later consider this case.
(2) Whether requiring the Respondent to withdraw its motion
to compel arbitration violates its Constitutional right to seek
redress.
(3) Whether the Board possesses the authority to order the
Respondent to reimburse Mestanek for all reasonable litiga-
tion expenses directly related to opposing the Respondent’s
efforts to enforce its MAA with her.
My role is not to interpret the United States Constitution as a
first-level judge, or to define the Board’s authority to issue
appropriate remedies for Horton violations. Therefore, I find it
beyond my jurisdiction to decide these questions, both of which
relate to the remedy that the General Counsel requests. I note
that the Respondent has cited no precedent directly on point on
either subject.
(4) Whether any issues regarding its motion to compel should
be dismissed on mootness grounds.
The Respondent does not address this in either its motion to
dismiss or its brief. Accordingly, I consider it to have been
withdrawn.
Facts
Based on the stipulated facts and documents, the thoughtful
posttrial briefs that the General Counsel and the Respondent
filed, and the Respondent’s motion to dismiss, I find the fol-
lowing.
PERTINENT STIPULATED FACTS
At all times material, the Respondent has been a Delaware
limited liability company with a principal office located in
Phoenix, Arizona, and has operated retail stores in various
States, including locations in Irvine, Seal Beach, Tustin, and
Yorba Linda, California. The Respondent has admitted Board
jurisdiction as alleged in the complaint, and I so find.
At all times material, Frank Lopez has held the position of
regional human resources manager, and Don Robertson has
held the position of store manager, and both have been Section
2(11) supervisors, and the Respondent’s agents.
Since at least January 1, 2012, the Respondent has required
that employees agree to MAAs as a condition of employment.
Since about January 2013, the Respondent has required em-
ployees at its California retail stores, including the locations
listed above, as a condition of employment or continued em-
ployment, to agree to be bound by a revised MAA1 The revised
MAA requires that the Respondent and employees resolve em-
ployment-related disputes, except for certain specifically ex-
cluded claims, through individual arbitration proceedings, and
to waive any rights that they may have to resolve covered dis-
putes through collective and/or class action. Additionally, the
Respondent has required employees at its California stores,
including the locations listed above, to execute an “acknowl-
edgment of receipt of California team member handbook sup-
plement” (handbook supplement),2 which incorporates by ref-
erence said MAA.
Jana Mestanek
On about January 23, 2012, the Respondent hired Mestanek
to work at its Yorba Linda store and, as a condition of employ-
ment, required her to sign an MAA that required in relevant
part:3
The Employee agrees and acknowledges that the Company
and Employee will utilize binding arbitration to resolve all
disputes that may arise out of the employment context. Both
the Company and Employee agree that any claim, dispute,
and/or controversy that either the Employee may have against
the Company . . . or the Company may have against the Em-
ployee, arising from, related to, or having any relationship or
connection whatsoever with my seeking employment by, or
other association with the Company, shall be submitted to and
determined exclusively by binding arbitration under the Fed-
eral Arbitration Act, and following the procedures of the ap-
plicable state arbitration act, if any.
To the extent permitted by applicable law, the arbitration
procedures stated below shall constitute the sole and exclusive
method for the resolution of any claim between the Company
and Employee arising out of “or related to” the employment
relationship. The parties hereto EXPRESSLY WAIVE their
rights. if any, to have such a matter heard by a court or a jury.
By waiving such rights, the parties are not waiving any reme-
dy or relief due them under applicable law.
Included Claims
Included within the scope of this agreement are all disputes,
whether they be based on the state employment statutes, Title
VII of the Civil Rights Act of 1964, as amended, or any other
state or federal law or regulation, equitable law, or otherwise,
with the exception of claims arising under the National La-
bor Relations Act which are brought before the National La-
bor Relations Board, claims brought pursuant to state workers
compensation statutes, or as otherwise required by state or
federal law.
Excluded Claims
Nothing herein shall prevent, prohibit, or discourage an em-
ployee from filing a charge with or participating in an inves-

1 Jt. Exh. 29. Jt. Exh. 7 is the version in effect in January 2012.
None of the parties contend that any differences in the language of the
two versions dictate a different outcome under Horton.
2 Jt. Exh. 30.
3 Jt. Exh. 7.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
tigation of the National Labor Relations Board (NLRB), the
Equal Employment Opportunity Commission (EEOC), or any
other state or federal agency (although if such a claim is pur-
sued following the exhaustion of such remedies, that claim
would be subject to these provisions). Nothing in this
Agreement is intended to interfere with the Employee’s rights
under the National Labor Relations Act . . . . [Emphases in
original.]
On November 7, 2012, Mestanek filed a class-action com-
plaint in Los Angeles County Superior Court, alleging that the
Respondent had committed various violations of California
wage and hour laws.4
On December 17, 2012, the Respondent filed a petition in
Orange County Superior Court to compel arbitration.5 Subse-
quently, the following occurred.
In Los Angeles County Superior Court
In response to Mestanek’s complaint, the Respondent, on
April 22, 2013, filed a notice of motion, a motion to compel
arbitration and stay proceedings, a supporting declaration, and a
request for judicial notice.6
On May 13, 2013, Mestanek filed a memorandum of points
and authorities in opposition to the Respondent’s motion to
compel arbitration.7
On May 20, 2013, the Respondent filed a reply to
Mestanek’s opposition to its motion to compel arbitration and
stay a proceedings, a declaration in support thereof, and eviden-
tiary objections to Mestanek’s evidence in opposition to the
motion to compel arbitration and stay proceedings.8
On June 7, 2013, the Los Angeles County Superior Court
granted in relevant part the Respondent’s motion to compel
arbitration, ordering Mestanek to arbitrate, on an individual,
nonclass basis, the claims alleged in her complaint, and denying
her motion to stay proceedings pending resolution of the appeal
of the Board’s Horton decision.9 The court declined to find
Horton “persuasive authority,” as Mestanek had argued.10
In Orange County Superior Court
On February 4, 2013, Mestanek filed an opposition to com-
pel arbitration, and a supporting declaration.11 On February 6,
2013, Mestanek filed a notice of motion and motion to abate
action, and a declaration in support thereof.12 On February 21,
2013, the Respondent filed an opposition to that motion.13
Mestanek filed a reply thereto on February 27, 2013.14
On February 6, 2013, the Respondent filed a request for ju-

4 Jt. Exh. 8. On December 14, 2012, she amended the complaint to
include the Respondent as a named defendant. Jt. Exh. 9.
5 Jt. Exh. 10.
6 Jt. Exhs. 21–23.
7 Jt. Exh. 24.
8 Jt. Exhs. 25–27.
9 Jt. Exh. 28.
10 Id. at 20.
11 Jt. Exhs. 11, 12.
12 Jt. Exhs. 15, 16.
13 Jt. Exh. 17.
14 Jt. Exh. 18.
dicial notice, and a motion to abate.15 On February 27, 2013,
Mestanek filed a reply thereto, along with a supporting declara-
tion.16 Also on February 27, 2013, the Respondent filed a re-
sponse to Mestanek’s opposition to compel arbitration.17 On
April 22, 2013, the Respondent filed an opposition in response
to Mestanek’s motion to abate.18
On March 6, 2013, the Orange County Superior Court issued
a tentative ruling granting Mestanek’s motion to abate action
and staying the Respondent’s petition to compel arbitration.19
Laura Christensen
On about January 16, 2013, the Respondent presented certain
employees, including Christensen, at its Tustin store, with a
revised MAA and acknowledgement of receipt of the handbook
supplement.20 The agreement provided, in relevant part:21
The Company and Employee agree that, except as specifically
provided in this Agreement, any claim, complaint, grievance,
cause of action, and/or controversy (collectively referred to as
a "Dispute”) that the Employee may have against the Compa-
ny . . . or that the Company may have against the Employee,
that arises from, relates to, or has any relationship or connec-
tion whatsoever with the Employee's employment with the
Company, shall be submitted to and determined exclusively
by final, binding, private arbitration pursuant to the terms of
this Agreement, the Federal Arbitration Act, and all other ap-
plicable state and federal law.
To the extent permitted by applicable law, the arbitration pro-
cedures in this Agreement shall constitute the sole and exclu-
sive method for the resolution of any of the Arbitrable Claims
discussed below. The Company and the Employee
EXPRESSLY WAIVE their rights, if any, to have such claims
heard by a court or a jury. By waiving such rights, however,
neither the Company nor the Employee are waiving any rem-
edy or relief that may be due to either of them under applica-
ble law . . . .
Included Claims
To the fullest extent permitted by Jaw, any Dispute between
the Employee . . . and the Company. . . that arise out of, relate
in any manner, or have any relationship whatsoever to the
employment or the termination of employment of Employee,
including, without limitation, any Dispute arising out of or re-
lated to this Agreement (“Arbitrable Claims”), shall be re-
solved by final and binding arbitration . . .
Excluded Claims
Nothing herein shall prevent, prohibit or discourage an em-
ployee from filing a charge with, or participating in an inves-
tigation by, the National Labor Relations Board (NLRB), the
Equal Employment Opportunity Commission (EEOC), any

15 Jt. Exhs. 14–15.
16 Jt. Exhs. 18–19.
17 Jt. Exh. 13.
18 Jt. Exh. 17.
19 Jt. Exh. 20.
20 Jt. Exh. 30.
21 Jt. Exh. 29.
SF MARKETS, LLC 11
I
state or local fair employment practices or civil rights agency
(including, but not limited to, the California Department of
Fair Employment and Housing and the California Labor
Commissioner, and similar agencies in other states, or any
other administrative agency or governmental body possessing
jurisdiction over employment-related claims (although if such
a claim is pursued following the exhaustion of such adminis-
trative remedies, that claim would be subject to these provi-
sions). Nothing in this Agreement is intended to interfere with
the Employee's rights to act collectively for mutual aid and
protection under the National Labor Relations Act . . . .
Waiver of Class, Collective, and Representative Action
Claims
Except as otherwise required under applicable law, the Com-
pany and Employee expressly intend and agree that (1) class
action, collective action, and representative action procedures
shall not be asserted, nor will they apply, in any arbitration
proceeding pursuant to this Agreement; (2) neither the Com-
pany nor the Employee will assert any class action, collective
action, or representative action claims against the other in ar-
bitration or otherwise; and (3) the Company and the Employ-
ee shall only submit their own respective, individual claims
in arbitration and will not seek to represent the interests of any
other person . . . . [Emphases in original.]
On about January 18, 2013, Managers Lopez, by telephone,
and Robertson, in person, told Christensen that she would be
considered to have resigned if she did not sign the acknowl-
edgment of receipt of the handbook supplement.
On January 30, 2013, Christensen refused to execute said ac-
knowledgment, and her employment was terminated. If she
received a termination notice, it is not in the record. The par-
ties stipulate that her refusal to execute the acknowledgment
was the sole basis that her employment ended.
Analysis and Conclusions
The application of Horton is at the core of all of the issues in
this case. In Horton, the Board held that an employer violates
Section 8(a)(1) of the Act by “requiring employees to waive
their right to collectively pursue employment-related claims in
all forums, arbitral and judicial,” because “The right to engage
in collective action—including collective legal action—is the
core substantive right protected by the NLRA and is the foun-
dation on which the Act and Federal labor policy rest.” 357 at
2286 (emphasis in original).
The Board further concluded that finding the MAA unlawful
was “consistent with the well-established interpretation of the
NLRA and with core principles of Federal labor policy” and
did not “conflict with the letter or interfere with, the policies
underlying the Federal Arbitration Act (FAA) [9 U.S.C., § 1 et
seq.] . . . .” Id. at 10.
The Respondents argues, on both procedural and substantive
grounds, that the holding in Horton should not be applied.
Procedural Grounds
The Respondent contends that (a) the Board lacked a quorum
at the time it issued the decision; (b) the consolidated com-
plaint was issued on the authority of a Regional Director ap-
pointed to that position by a Board that lacked a quorum at the
time of her appointment; and/or (c) the complaint was issued
pursuant to a delegation of authority from the Acting General
Counsel who was appointed to that position in violation of the
Vacancies Reform Act, and who therefore lacked authority to
so delegate.
The Respondent relies on Noel Canning v. NLRB, 705 F.3d
490 (D.C. Cir. 2013), for its proposition that Horton was inval-
idly issued because the Board lacked a quorum at that time,
inasmuch as Members Sharon Block and Richard Griffin were
recess appointments and hence invalidly appointed. The Re-
spondent further contends that this invalidated their appoint-
ment of the Regional Director who issued the complaint. How-
ever, the Board has rejected the position that it could not valid-
ly issue decisions when two of the three Board Members were
recess appointments. See G4S Regulated Security Solutions,
359 NLRB No. 101, slip op. at 1 fn. 1 (2013), citing Belgrove
Post Acute Center, 359 NLRB No. 77, slip op. at 1 fn. 1 (2013).
The Board noted that other courts of appeals have reached deci-
sions contrary to Canning and that “pending a definitive resolu-
tion, the Board is charged to fulfill its responsibilities under the
Act.” Ibid.
If the Board was properly constituted, ergo it had the authori-
ty to appoint the Regional Director who issued the complaint in
this matter.
Finally, the Board has explicitly held that the Acting General
Counsel was properly appointed under the Vacancies Reform
Act, and rejected the argument that he lacked authority to issue
complaints. Corona Regional Medical Center, 2014 WL
101770, at 1 fn. 1 (Jan. 9, 2014), citing Muffley v. Massey En-
ergy Co., 547 F.Supp. 2d 536, 542–543 (S.D. W.Va. 2008),
affd. 570 F.3d 534, 536 at fn. 1 (4th Cir. 2009) (upholding au-
thorization of 10(j) injunction proceeding by Acting General
Counsel).
Substantive Grounds
The Respondent argues that the Fifth Circuit Court of Ap-
peals and other courts have rejected Horton to the extent that it
found it to be afoul of the Act a MAA prohibiting class action.
Thus, the Fifth Circuit concluded that neither the NLRA’s stat-
utory text nor its legislative history contained a congressional
command against application of the FAA and that, in the ab-
sence of an inherent conflict between the FAA and the NLRA’s
purpose, a MAA should be enforced according to its terms.
737 F.3d at 361–363. Accordingly, the court denied enforce-
ment of the Board’s order invalidating the MAA.22
However, I am constrained to follow Board precedent that
has not been reversed by the Supreme Court or by the Board
itself. See Pathmark Stores, 342 NLRB 378, 378 fn. 1 (2004);
Hebert Industrial Insulation Corp., 312 NLRB 602, 608
(1993).
In this regard, the Board generally applies a
“nonacquiescence policy” to appellate court decisions that con-

22 The court did enforce the Board’s order that Sec. 8(a)(1) had been
violated because an employee would reasonably interpret the MAA as
prohibiting the filing of a claim with the Board, a violation not alleged
here.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD12
flict with Board law, D. L. Baker, Inc., 351 NLRB 515, 529 at
fn. 42 (2007); Arvin Industries, 285 NLRB 753, 757 (1987),
and instructs its administrative law judges to follow Board
precedent, not court of appeals precedent. Gas Spring Co., 296
NLRB 84, 97 (1989) (citing, inter alia, Insurance Agents (Pru-
dential Insurance), 119 NLRB 768 (1957), revd. 260 F.2d 736
(D.C. Cir. 1958), affd. 361 U.S. 477 (1960), enfd. 908 F.2d 966
(4th Cir. 1990), cert. denied 498 U.S. 1084 (1991).
The Board has explained that it is not required, on either le-
gal or pragmatic grounds, to automatically follow an adverse
court decision but will instead respectfully regard such ruling
solely as the law of that particular case. See Manor West, Inc.,
311 NLRB 655, 667 fn. 43 (1993), revd. 60 F.3d 1195 (6th Cir.
1995).
The Supreme Court has upheld the enforcement of individual
MAAs in various contexts, enunciating the general principal
that the FAA was designed to promote arbitration. See, e.g.,
AT & T Mobility LLC v. Conception, 131 S.Ct. 1740, 1749
(2011). Moreover, the Court in Gilmer v. Interstate/Johnson
Lane Corp., 500 U.S. 20 (1991), held that a MAA signed by an
employee waived his right to bring a Federal court action under
the Age Discrimination in Employment Act. However, as the
Board noted in Horton, Gilmer dealt with an individual claim,
and the MAA therein contained no language specifically waiv-
ing class or collective claims; ergo, the Court in Gilmer ad-
dressed neither Section 7 nor the validity of a class-action
waiver. 357 NLRB at 2286. Since the Supreme Court has not
specifically addressed the issue of mandatory arbitration provi-
sions that cover class and/or collective actions vis-à-vis the Act,
it follows that the Court has not overruled Horton, which re-
mains controlling law.
Therefore, I must analyze this case under the Horton stand-
ards to determine whether the Respondent’s MAA, and its con-
comitant conduct, violated Section 8(a)(1) of the Act.
The Respondent contends that if, indeed, Horton applies, its
MAAs do not contravene Horton; rather, that they come under
the following “exception” posited in Horton:
[N]othing in our holding here requires the Respondent or any
other employer to permit, participate in, or be bound by a
class-wide or collective action proceeding. . . . We need not
and do not mandate class arbitration in order to protect em-
ployees’ rights under the NLRA. Rather, we hold only that
employers may not compel employees to waive their NLRA
right to collectively pursue litigation of employment claims in
all forums, arbitral and judicial. So long as the employer
leaves open a judicial forum for class and collective claims,
employees’ NLRA rights are preserved without requiring the
availability of class-wide arbitration. Employers remain free
to insist that arbitral proceedings be conducted on an individ-
ual basis. 357 NLRB at 2288 (emphasis added).
The Respondent’s argument is misplaced. As I earlier stated,
the Board in Horton emphasized the importance of employees
not being prohibited from pursuing collective legal action: “The
right to engage in collective action—including collective legal
action—is the core substantive right protected by the NLRA
and is the foundation on which the Act and Federal labor policy
rest.” 357 NLRB at 2286 (emphasis in original). The “excep-
tion” to which the Respondent refers indicates that an employer
may require arbitration on an individual basis if it does not
foreclose employees from class or collective judicial recourse.
Such is not the case here. Both MAAs in question provide
that the sole venue for disputes is individual arbitration. The
MAA relating to Christensen expressly prohibits her from as-
serting any class or concerted action “in arbitration or other-
wise,” thus precluding collective action in both arbitral and
judicial settings. The MAA pertinent to Mestanek contains an
express waiver of the right to have an employment-related mat-
ter “heard by a court or a jury.” Although that MAA is silent
on the matter of class arbitration, the Respondent argued, in
both Los Angeles and Orange County Superior Courts, that the
language and intent of the MAA was that Mestanek could pur-
sue only her own individual claims in arbitration,23 and the
Respondent continues to adhere to that position.
Thus, the Respondent’s MAAs have barred employees from
pursuing, on a collective basis, either in court or in arbitration,
matters relating to their employment, placing them squarely
within the parameters of the MAAs prohibited by Horton.
The fact that both MAAs specifically provide that employees
may file charges with administrative agencies, including the
NLRB, does not cure this defect. Rather, this obviates the find-
ing of a separate violation that employees could reasonable
believe that the MAAs bar or restrict their right to file NLRB
charges.
The Respondent further contends that its opposition to
Mestanek’s class-action lawsuit did not violate the Act because
(1) the Respondent has a constitutional right to petition the
Government for redress under Amendment I; (2) the Respond-
ent’s petition and motion to compel arbitration were “objec-
tionably reasonable under BE & K Constr. v. NLRB, 536 U.S.
516 (2002); and (3) the petition and motion were not advanced
for any “unlawful objective.”
The Respondent cites no cases that have held lawful on any
of these grounds an employer’s seeking to enjoin an employ-
ee’s lawsuit based on an unlawful MAA (as Horton dictates). I
decline to be the first judge to do so.
Based on the above, I conclude that the Respondent has vio-
lated Section 8(a)(1) by maintaining MAAs that unlawfully
restrict employees from engaging in collective activity through
filing either class or collective lawsuits or arbitrations, as a
condition of employment and continued employment. Using
the analogy of fruit flowing from a poisoned tree, it follows that
the Respondent also violated Section 8(a)(1) by filing motions
in California Superior Court to compel Mestanek to arbitrate
her wage-hour claims rather than have them heard as a class-
action lawsuit, by telling Christensen that she had to agree to
sign a MAA or face termination, and by terminating Christen-
sen because she refused to do so.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. By the following conduct, the Respondent has engaged in
unfair labor practices affecting commerce within the meaning

23 See, e.g., Jt. Exh. 10 at 17–20; Jt. Exh. 21 at 19–21.
SF MARKETS, LLC 13
of Section 2(6) and (7) of the Act and violated Section 8(a)((1)
of the Act.
(a) Maintained, as a condition of employment and continued
employment, mandatory arbitration agreements (MAAs) pro-
hibiting employees from pursuing collective or class lawsuits
and arbitrations.
((b) Filed a petition to compel arbitration in one State court,
and a motion to compel arbitration in another State court, to
enforce its MAA with an employee, to preclude her from pursu-
ing, on a collective or class basis, wage-hour disputes with the
Respondent.
(c) Told an employee, in essence, that if she did not agree to
the terms of a MAA, which precluded her from pursuing collec-
tive or class lawsuits and arbitrations, she would be terminated.
(d) Terminated an employee’s employment based solely on
her refusal to sign such an MAA.
REMEDY
Because I have found that the Respondent has engaged in
certain unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action designed
to effectuate the policies of the Act.
Specifically, the Respondent shall make Laura Christensen
whole for any losses, earnings, and other benefits that she suf-
fered as a result of the unlawful discipline imposed on her.
Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), compounded
daily as prescribed in Kentucky River Medical Center, 356
NLRB 6 (2010).
Further, the Respondent shall file a report with the Social
Security Administration allocating backpay to the appropriate
calendar quarters and, if it becomes applicable, shall compen-
sate Christensen for any adverse tax consequences of receiving
a lump-sum backpay award. Latino Express, Inc., 359 NLRB
No. 44 (2012).
On these findings of fact and conclusions of law and on the entire
record, I issue the following recommended24
ORDER
The Respondent, SF Markets, LLC d/b/a Sprouts Farmers
Market, Phoenix, Arizona, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining, as a condition of employment and contin-
ued employment, mandatory arbitration agreements (MAAs)
prohibiting employees from pursuing collective or class law-
suits and arbitrations.
(b) Filing court petitions or motions to compel individual
arbitration to enforce its MAAs with employees, to preclude
them from pursuing, on a collective or class basis, employment-
related disputes with the Respondent.
(c) Telling employees that if they do not agree to the terms

24 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be adopt-
ed by the Board and all objections to them shall be deemed waived for
all purposes.
of an MAA that precludes them from pursuing collective or
class lawsuits and arbitrations, they will be terminated or oth-
erwise subjected to adverse action.
(d) Terminating or otherwise taking adverse action against
employees because of their refusal to sign such a MAA.
(e) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days from the date of the Board’s Order, offer
Laura Christensen full reinstatement to her former job or, if that
job no longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights or privi-
leges previously enjoyed.
(b) Make Laura Christensen whole for any loss of earnings
and other benefits suffered as a result of the discrimination
against her in the manner set forth in the remedy section of the
decision.
(c) Within 14 days from the date of the Board’s Order, re-
move from its files any reference to the unlawful termination of
Laura Christensen, and within 3 days thereafter notify her in
writing that this has been done and that the termination will not
be used against her in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
(e) Reimburse Jana Mestanek for any litigation expenses di-
rectly related to opposing Respondent's petition and motion to
compel arbitration (or any other legal action taken to enforce
the arbitration agreement).
(f) Withdraw its notice of motion and motion to compel ar-
bitration filed in Los Angeles County Superior Court; or if the
court issues an adverse order/judgment against Jana Mestanek
based thereon, move together with her, upon her request, to
vacate the order/judgment, provided that said motion can still
be timely filed.
(g) Rescind the requirement that employees enter into or
sign the MAAs that are currently in effect, or sign acknowl-
edgements relating to them, as a condition of employment, and
expunge all such agreements and acknowledgements at any of
the Respondent's California facilities where the Respondent has
required employees to sign such agreements or acknowledge-
ments.
(h) Rescind or revise the MAAs to make it clear that the
agreements do not constitute a waiver of the employees’ right
to initiate or maintain employment-related collective or class
actions in arbitrations and in the courts.
(i) Notify employees that the MAAs have been rescinded or
revised to comport with subparagraph (h), and provide them
with any revised agreement.
(j) Within 14 days after service by the Region, post at its fa-
cilities in Irvine, Seal Beach, Tustin, and Yorba Linda, Califor-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD14
nia, and any other facilities where MAAs have been maintained
as a condition of employment, copies of the attached notice
marked “Appendix.”25 Copies of the notice, on forms provided
by the Regional Director for Region 21, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
are customarily posted. In addition to physical posting of paper
notices, notices shall be distributed electronically, such as by
email, posting on an intranet or an internet set, and/or other
electronic means, if the Respondent customarily communicates
with its employees by such means. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since December 17, 2012.
(k) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated, Washington, D.C. February 18, 2014
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your be-
half
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activi-
ties.
WE WILL NOT maintain, as a condition of employment and
continued employment, mandatory arbitration agreements
(MAAs) prohibiting employees from pursuing collective or

25 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
class lawsuits and arbitrations.
WE WILL NOT file court petitions or motions to compel indi-
vidual arbitration to enforce our MAAs with employees, to
preclude them from pursuing, on a collective or class basis,
employment-related disputes with us.
WE WILL NOT tell employees that if they do not agree to the
terms of a MAA, which precludes them from pursuing collec-
tive or class lawsuits and arbitrations, they will be terminated or
otherwise subjected to adverse action.
WE WILL NOT terminate or otherwise take adverse action
against employees because of their refusal to sign such an
MAA.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
WE WILL within 14 days from the date of the Board’s Order,
offer Laura Christensen full reinstatement to her former job or,
if that job no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any other rights or
privileges previously enjoyed.
WE WILL make Laura Christensen whole for any loss of earn-
ings and other benefits suffered as a result of our discrimination
against her, with interest.
WE WILL within 14 days from the date of the Board’s Order,
remove from our files any reference to the unlawful termination
of Laura Christensen, and within 3 days thereafter notify her in
writing that this has been done and that the termination will not
be used against her in any way.
WE WILL reimburse Jana Mestanek for any litigation expens-
es directly related to opposing our petition and motion to com-
pel arbitration (or any other legal action taken to enforce the
arbitration agreement).
WE WILL withdraw our notice of motion and motion to com-
pel arbitration filed in Los Angeles County Superior Court; or
if the court issues an adverse order/judgment against Jana
Mestanek based thereon, move together with her, upon her
request, to vacate the order/judgment, provided that said motion
can still be timely filed.
WE WILL rescind the requirement that employees enter into
or sign the MAAs that are currently in effect, or sign acknowl-
edgements relating to them, as a condition of employment, and
expunge all such agreements and acknowledgements at all of
the Respondent's facilities where the Respondent has required
employees to sign such agreements or acknowledgements.
WE WILL rescind or revise the MAAs to make it clear that the
agreements do not constitute a waiver of the employees’ right
to initiate or maintain employment-related collective or class
actions in arbitrations and in the courts.
WE WILL notify employees that the MAAs have been so re-
scinded or revised, and provide them with any revised agree-
ment.
SF MARKETS, LLC D/B/A SPROUTS FARMERS MARKET